A recent decision from the Saskatchewan Court of King’s Bench provides important clarification on the role of the Saskatchewan Human Rights Commission when advancing a human rights complaint for a hearing before the Court. The decision, Saskatchewan (Human Rights Commission) v Crowe, 2023 SKKB 71 [Crowe], involves a human rights complaint initiated by an employee against a former employer.
At a general and high level, an employee seeking to make a claim relating to discrimination may file a complaint with the Commission. If a complaint is accepted by the Commission, the Commission facilitates settlement discussions and investigates the complaint. If the parties cannot agree on a resolution and if, following the investigation, the Chief Commissioner determines there may be merit to the complaint, the Chief Commissioner may refer the complaint to the Court for a hearing.
In Crowe, a procedural issue arose because the lawyer for the Commission objected to certain questions that were posed by the former employer’s lawyer to the employee during questioning. The employee was not represented by their own lawyer.
Questioning and objections during questioning are matters governed by The Queen’s Bench Rules, which apply to proceedings before the Court. The Rules allow a witness or their lawyer to object to a question they believe is inappropriate. The Rules do not allow a third party to intervene in questions unless it pertains to that party’s rights.
The key issue in Crowe was whether or not the Commission’s lawyer was a third party or was able to act as a lawyer for the employee and object to questions the lawyer believed to be inappropriate.
The Court held that the Commission’s lawyer could not object to questions asked to the employee because the Commission’s lawyer could not be a lawyer for the employee.
A complainant may rely on the Commission to advance the complaint procedurally, but they cannot look to them for advice on their substantive rights, such their rights in relation to questioning.
In Crowe, the Court explained that, when a complaint is first received, the Human Rights Commission has a gatekeeper role. Their mandate is to protect the public interest by investigating and identifying meritorious claims. Once the Chief Commissioner exercises their discretion to refer a complaint to the Court, the Commission’s role changes from an investigative body to a party to the proceedings.
For this reason, there are at least three parties to a hearing under the Saskatchewan Human Rights Code: the complainant, the respondent, and the Commission. The Commission has carriage of the complaint and is typically represented by a lawyer. The Commission’s lawyer can present evidence, question witnesses, and argue the merits of a complaint.
Although the lawyer representing the Commission may advance and participate in the hearing, there are limitations to the degree that lawyer can assist a complainant. In Crowe, the Court emphasized that the role of the Commission is not to advocate for a complainant. The Commission’s focus is to advocate for the public interest.
Court proceedings have the potential to get complicated. Parties to a proceeding benefit when they are represented by counsel that are committed to their best interests. For employers, this decision offers clarification on the roles of the parties to a proceeding and how those roles impact procedures, such as questioning. The decision also demonstrates that navigating the rules and procedures, as well as arguing the merits of an application, is a highly nuanced exercise and in some ways is still being developed.
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